F I L E D

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

United States Court of Appeals

Tenth Circuit

OCT 20 2004

PATRICK FISHER
Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
v.
MARIO R. GARCIA-EMANUEL,

No. 04-5030
(N.D. Okla.)
(D.Ct. No. 90-CR-92-K)

Defendant-Appellant.

ORDER AND JUDGMENT *

Before TACHA, Chief Circuit Judge, and PORFILIO and BRORBY, Senior
Circuit Judges.

After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1.9(G). The case is
therefore ordered submitted without oral argument.

This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
*

Mario R. Garcia-Emanuel, a pro se litigant and federal inmate, appeals the

district courts dismissal of his motion seeking a reduction of his 240-month
sentence based on post-offense rehabilitation, which the district court treated and
denied as a motion filed pursuant to 18 U.S.C. 3582(c). We exercise
jurisdiction under 28 U.S.C. 1291 and affirm.

Mr. Garcia-Emanuels lengthy procedural history before this court is as

follows. On April 1, 1991, a jury found Mr. Garcia-Emanuel guilty of conspiracy
to possess and distribute cocaine; continuing a criminal enterprise; five counts of
income tax evasion; conspiracy to launder money; and seventeen counts of money
laundering. United States v. Garcia-Emanuel, 14 F.3d 1469, 1471 (10th Cir.
1994). The district court granted a judgment of acquittal on seventeen counts of
money laundering and the money laundering conspiracy, and sentenced him to 292
months imprisonment. On direct appeal, this court affirmed Mr. GarciaEmanuels convictions, but reversed some of the money laundering count
dismissals and remanded for resentencing. Id. at 1479. On remand, the district
court resentenced Mr. Garcia-Emanuel to the same 292 months imprisonment and
Mr. Garcia-Emanuel did not appeal his resentencing.

Thereafter, Mr. Garcia-Emanuel successfully filed a 28 U.S.C. 2255

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motion, in which the district court vacated the conspiracy conviction and
resentenced Mr. Garcia-Emanuel to 240 months imprisonment. United States v.
Garcia-Emanuel, 141 F.3d 1186, 1998 WL 141988 at *2 (March 30, 1998)
(unpublished op.). This court affirmed. Id. at *3. Mr. Garcia-Emanuel then filed
two separate 28 U.S.C. 2255 motions to vacate, set aside, or correct his
sentence, which the district court transferred to this court for consideration as
second or successive motions. This court denied both successive 2255 motions.

Mr. Garcia-Emanuel next filed a Motion for Post-Offense Rehabilitative

[sic], which the district court construed as a motion under 18 U.S.C. 3582(c) to
modify his sentence. After discussing the three avenues available for such
modification and determining none exist in this case, the district court concluded
it lacked the authority to reduce Defendants sentence based only on
rehabilitative efforts.

On appeal, Mr. Garcia-Emanuel contests the district courts denial of his

motion to modify his sentence based on his post-sentence rehabilitation efforts.
He also raises for the first time on appeal two ineffective assistance of counsel
issues, claiming his attorney was ineffective for not raising: 1) the request for
post-offense rehabilitative relief, and 2) the issue that he was only a minor or
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minimal participant.

We review de novo the district courts interpretation of a statute. United

States v. Smartt, 129 F.3d 539, 540 (10th Cir. 1997) (quotation marks and citation
omitted). When a motion for sentence reduction is not a direct appeal or a
collateral attack under 28 U.S.C. 2255, the viability of [the] motion depends
entirely on 18 U.S.C. 3582(c). Id. (internal quotation marks, citation and
alteration omitted). Section 3582(c) allows the court to modify a sentence in only
three limited circumstances, including: 1) on motion of the Director of the
Bureau of Prisons if special circumstances exist; 2) if otherwise expressly
permitted by statute or Federal Rule of Criminal Procedure 35; or 3) if the
sentencing range is subsequently lowered by the Sentencing Commission. Id. at
540-41. As previously noted, Mr. Garcia-Emanuels motion is premised solely on
his post-sentencing rehabilitation efforts, which the district court construed as a
3582 motion.

Having reviewed the record and briefs on appeal, we conclude the district
court did not err in construing Mr. Garcia-Emanuels motion to modify his
sentence as one filed under 3582(c), and then denying it. As the district court
aptly explained, post-sentence rehabilitation is not a factor considered under
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 3582(c) for the purpose of modifying a sentence, and therefore, the district
court clearly lacked authority to reduce his sentence on that basis. See 18 U.S.C.
3582(c).

With respect to Mr. Garcia-Emanuels first ineffective assistance of counsel

claim, he claims his counsel improperly failed to file a motion for reduction of his
sentence based on his post-sentence rehabilitation. Giving Mr. Garcia-Emanuel
the benefit of the doubt, we assume this claim did not exist when he filed his
prior 2255 motions as he may not have yet completed the rehabilitation alleged.
Because the claim presumably did not exist, it cannot be considered a successive
petition. See United States v. Scott, 124 F.3d 1328, 1330 (10th Cir. 1997).
However, Mr. Garcia-Emanuel failed to raise this claim before the district court.
Generally, we will not consider an issue not raised before the district court absent
plain error. United States v. Arras, 373 F.3d 1071, 1075 (10th Cir. 2004). Even
if we considered it, Mr. Garcia-Emanuel fails to establish his counsels
performance was either deficient or the deficiency prejudiced his case. See
Strickland v. Washington, 466 U.S. 668, 687-88 (1984). This is because, as
previously explained, Mr. Garcia-Emanuels request for modification of his
sentence based on post-sentence rehabilitation lacks merit, as it is not a factor
considered for modification under 18 U.S.C. 3582(c). Thus, even if his counsel
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had brought such a motion, Mr. Garcia-Emanuel would not have been successful.

As to the other ineffective assistance of counsel claim stemming from

counsels failure to raise the issue of minor or minimal participation at trial or
sentencing, we will, for the purposes of judicial economy, construe Mr. GarciaEmanuels claim as an application to this court to file a second or successive
motion. See 28 U.S.C. 2255. Generally, the right to file a second or successive
motion under 28 U.S.C. 2255 is limited to the following two circumstances:
(1) newly discovered evidence that, if proven and viewed in light of
the evidence as a whole, would be sufficient to establish by clear and
convincing evidence that no reasonable factfinder would have found
the movant guilty of the offense; or
(2) a new rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously
unavailable.
Id. However, with respect to claims of ineffective assistance raised on a second
application for post-conviction relief, we have applied the rule that [t]he abuse
of the writ doctrine prohibits [a petitioners] second [or subsequent] 2255
motion unless he excuses his failure to raise the issue earlier by showing cause for
failing to raise it and prejudice therefrom or by showing that a fundamental
miscarriage of justice would result from a failure to entertain the claim. See
United States v. Richards, 5 F.3d 1369, 1370 (10th Cir. 1993) (quotation marks
and citation omitted). See also Moore v. Reynolds, 153 F.3d 1086, 1096-97 (10th
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Cir. 1998). In this case, under either criteria applied, Mr. Garcia-Emanuels
ineffective assistance of counsel claim must fail. His claim is not subject to
certification because it is not based on newly discovered evidence or a new rule
of constitutional law. Moreover, he has failed to show cause for not raising this
ineffective assistance of counsel claim in his original 2255 motion, and we find
nothing in his brief or the record to suggest that a fundamental miscarriage of
justice will result from a failure to entertain the claim on appeal.

Accordingly, we AFFIRM the district courts decision denying a sentence

reduction under 18 U.S.C. 3582(c)(2).

Entered by the Court:

WADE BRORBY
United States Circuit Judge

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